Wal-Mart Trying to Trademark the Smiley Face 317
Ellis D. Tripp writes to tell us BBC News is reporting that mega-retailer, Wal-Mart, is now fighting it out with a man who claims to have invented the 'smiley face' logo, and has been marketing it since the '70s. From the article: "Until now the smiley face had been considered in the public domain in the US, and therefore free for anyone to use. Wal-Mart spokesman John Simley told the Los Angeles Times that it had not moved to register the trademark until Mr Loufrani had threatened to do so."
I thought it was invented by (Score:5, Funny)
Re:I thought it was invented by (Score:2)
Re:I thought it was invented by (Score:2, Insightful)
But in all seriousness, I would've thought that the Joe Boxer company would've had more claim to the logo than most. (although they Did add the tongue) Picture Example [joeboxer.com]
Re:I thought it was invented by (Score:5, Funny)
Re:I thought it was invented by (Score:5, Interesting)
Re:I thought it was invented by (Score:3, Interesting)
Re:I thought it was invented by (Score:3, Insightful)
Re:I thought it was invented by (Score:5, Informative)
IANAIPL but my ex-wife is and she is always talking about how strange and vague trademark law can be. Her firm help trademark the shape of the Dean's Milk Chugs bottles. They used the Coca-Cola bottle product packaging trademark as the basis for their argument. So saying that consumers might be confused in the market place by a well known smiley face is not that odd or unethical.
Re:I thought it was invented by (Score:3, Interesting)
Re:I thought it was invented by (Score:4, Interesting)
Actually, while this may be the case with copyrights, it is not the case with trademarks. If you have a trademark, and someone infringes on it, and you don't vigorously defend it in a timely manner, you lose your exclusive rights to it.
Re:I thought it was invented by (Score:3, Interesting)
Forrest, not Forest (Score:2)
Prior Art! (Score:3, Funny)
http://www.esa.int/esaMI/Mars_Express/SEMMTFNFGLE
My reaction (Score:5, Funny)
That's it... (cat filter)
Re:My reaction (Score:4, Funny)
Despair Inc. beat you to it (Score:5, Informative)
Re:Despair Inc. beat you to it (Score:2)
Re:My reaction (Score:3, Funny)
Re:My reaction (Score:2)
:( Sad Sad (Score:5, Funny)
And since this is a trademark dispute, can't SmileyWorld keep selling its smiley icons while Wal-Mart keep sellings its items. I don't see a dispute here unless Wal-Mart employees start smiling.
Re::( Sad Sad (Score:3, Informative)
http://www.despair.com/frownonthis.html [despair.com]
See the actual posting at
http://tarr.uspto.gov/servlet/tarr?regser=serial&
The sad face :-( is already trade marked. (Score:3, Informative)
is already trade marked by Despair Inc.
http://www.despair.com/frownonthis.html [despair.com]
And it is already registered. So I don't see why one can't register a trade mark from the smily face.
Re:The sad face :-( is already trade marked. (Score:2)
In fact, a lot of cartoon based facial expressions may be in trouble under this as derivatives.
New law for patents and trademarks (Score:3, Interesting)
Re:New law for patents and trademarks (Score:3, Informative)
Simley? (Score:5, Funny)
Re:Simley? (Score:2)
Re:Simley? (Score:2)
Everybody sing along! (Score:4, Funny)
I worked for walmart ..... (Score:4, Interesting)
NO ONE that worked there smiled. Why? We were all miserable. The only time we were happy was when our shifts were ending at 7am, coincidentally when they started selling alcohol each day. I can't speak for walmart in general, but the store I worked at had HORRIBLE management, directly contributing to the lack of smiles amongst the night shift.
Back on topic, its horsepucky. People see a smiley face, they do NOT think "walmart".
Re:I worked for walmart ..... (Score:5, Insightful)
That's not to say that the management had nothing to do with it, of course, but not many people are gonna be doing a lot of smiling while restocking the toilet-paper aisle and directing the latest group of stoners to the Doritos, regardless of the management.
Re:I worked for walmart ..... (Score:2)
Okay.. maybe I'm the only person with this fantasy for cashier girls. What a sick bastard.
Re:I worked for walmart ..... (Score:2)
As the Comic Book Guy would say... (Score:5, Funny)
Comment removed (Score:5, Informative)
Lewis Carrol (Score:2)
Ultimate Trademark Dispute?? (Score:4, Funny)
The only way I can see this working for Wal-Mart (Score:5, Insightful)
Wal-Mart's smiley face is a very distinctive one - the elongated eyes, the wide smile, the button-ised bevel around its edges, the ray-man-esque gloves. If they included its whistling personality and the song they use for the whistling, there is a GOOD chance they can copyright that specific interpretation of the smiley as a cartoon character, much in the way the Church of the Subgenius seems to hold the copyright for 'Bob's pipe-wielding visage, despite how common the image of a clean-cut 50's male with a pipe actually was in those times.
I think Wal-mart is full of shit here if they think they can claim they invented the smiley or patented its use in drumming up sales, but if they keep to that narrow interpretation I just described, they have a chance.
Re:The only way I can see this working for Wal-Mar (Score:2)
1) Copyright is about giving control of who may copy a work, so that its creator may profit from it without competition from people who did not toil to create the work.
2) Trademark is about letting associating a piece of work with the reputation of a company, and allowing a company to identify itself uniquely in the marketplace.
Both systems are broken. In fact the entire idea of "Intellectual Property" - ownership of ideas - is broken. We
Mr. Copyright, meet Mr. Trademark (Score:5, Interesting)
You're confusing copyrights and trademarks. They can't "copyright" the smiley face because they didn't create it. They can trademark it. But if the smiley face actually were under copyright, then they couldn't trademark it because you couldn't reproduce it (so they could never use it).
Legally, WalMart may be able to get away with registering a trademark on the smiley face, if it is really in the public domain. Ethically, that's wrong: the smiley face is a cultural icon that no company ought to be able to claim rights to.
However, one can throw a monkey wrench in their plans simply by re-creating the association between the smiley face and psychotic killers, since those seem to love the symbol. Given stories by WalMart employees, perhaps their choice of trademark isn't so inappropriate after all.
Re:The only way I can see this working for Wal-Mar (Score:4, Insightful)
That may be true, but they're also full of money, the thing that really counts in the court system.
Pointless "prior art" (Score:5, Funny)
if this goes through.... (Score:2)
But what's on the BACK of the smiley? (Score:2)
All I have to say is... (Score:2, Funny)
Who Watches the Walmartmen? (Score:3, Funny)
Note to Wally world (Score:4, Informative)
Suck it.
Change-up (Score:5, Funny)
Spelling matters (Score:5, Informative)
The universe would not allow such a coincidence. The guy's name, according the the article, is actually John Simley.
Re:Spelling matters (Score:3, Funny)
Re:Spelling matters (Score:3, Funny)
Re:Spelling matters (Score:2)
Defensive trademark registration (Score:5, Interesting)
In this case, Walmart is the little guy defending itself against the Big, Bad USPTO.
Re:Defensive trademark registration (Score:2)
Re:Defensive trademark registration (Score:2)
They obviously need to set the bar a bit higher than fill out some forms and pay a fee for potential registrants. Would it be unreasonable to ask that the person or corporation registering the mark show some proof of its pedigree?
Re:Defensive trademark registration (Score:4, Insightful)
In no way does everyone know that the smiley face "came from Walmart". In fact it did not. Walmart has latched onto this symbol of good cheer in order to bolster their brand. And while the origin is a point of contention, it ain't their's. They did not invent that symbol.
Linux was, is and always has been associated with the work of Linus Torvalds (and company).
Walmart is stealing the smiley face. They are either stealing from the public domain, or from someone with a prior claim but make no mistake they are coopting it for themsleves.
The trademark dispute over the origin's of the smiley face are long standing. The Frenchman has a valid trademark in Europe and elsewhere. Good for him. Just because Walmart want's to get in on the act doesn't mean that we should all line up to hand over this part of the zeitgeist.
IMHO the smiley face is probably perfect for Walmart. Nothings says just be happy and don't give a shit or much thought about the broader implications of where you spend your dollars than a smiley face.
Wake up you sheep.
Are they JOKING?!? (Score:2, Funny)
Wahahahahahahaha!!!!!!11
He obviously doesn't understand the meaning of ironic.
Harvey Ball invented it first (Score:2)
Frown trademarked (Score:2, Informative)
:-( already is trademarked! (Score:2, Redundant)
Smiley Trademark (Score:2)
It's the yellow. (Score:2, Insightful)
Does the "obvious" thing apply to trademarks? It's just too simple. It's been used too many times before. It's even on license plates.
I know this face from the "have a day" poster; it has dozens of variations of the face with labels like "have a silly day" or "have a cold day".
There's a reason it was in Forrest Gump, and there's a reason someone made a whole poster out of this smiley face; every
Consequences? (Score:2)
It is good to know that this was as reaction, rather than some lunacy Wal-Mart thought up on its own. However, I still worry that if they are granted the trademark that they will put the full power of their considerable legal muscle behind "p
Duh? (Score:2)
Who do think will win this? If they don't have a trademark, and if Wal-Mart registers it who will win? Obviously, it's been around forever.. but still.
Common use (Score:3, Interesting)
straight dope (Score:3, Informative)
Ramifications (Score:3, Interesting)
IIUTC trademark in the US is limited to specific types of business i.e. retail.
From TFA Franklin Loufrani - just one of a number of people who profess to have invented the image - has marketed the sign since the early 1970s.
He and his London-based company SmileyWorld today own the rights to the logo in more than 80 countries around the world.
Does he own a copyright or a trademark? Are these two concepts universal? Does he license it to multiple forms of business? How would this concept of him 'owning the rights' apply here in the US?
On top of that, how does the whole 'prior art' thing work in this instance? Could this guy theoretically trademark something he's been using since the 60's even though another company has been using it for over 10 years? Is prior art an international concept, or does it have to have been used in the US for the USPTO to recognize it?
Ultimately I'm not sure why this frenchman is bothering, other than the fact that he's French and annoying. It would cost Walmart an astronomical amount of money to remove the smiley from all of the areas of business where they use it. I"m sure they'd much rather put that money to fighting it (or buying a judge, buying new laws, etc...). How could anyone hope to have the finances to win this case?
slashdot trademarks (Score:5, Funny)
The Real Smily Face Creator- Harvey Ball (Score:2, Informative)
Just thought you'll want to know.
I totally believe this guy (Score:4, Funny)
After all, this is a very well known fact that only Frechman is capable of being yellow AND have a smiley face. Fact proven during WWII, case closed. Give the patent to the Frechy.
Copyright this... (Score:3, Interesting)
Wayback machine (Score:2)
Re:Wayback machine (Score:2)
Sadly the smiley turned out to be a powerfull cop magnet.
What's Wrong With This Picture? (Score:3, Interesting)
Re:What's Wrong With This Picture? (Score:3, Interesting)
Apparently Wal-Mart was founded in 1962 and incorporated in 1969, so while the smiley face may be slightly older than the corporation , it's slightly younger than the business.
It is, however, considerably older than Wal-Mart's use of it.
Walkman (Score:3, Insightful)
Apparently it took SmileyWorld a few decades before trying to enforce their claimed trademark. As such it has become public domain already, whether they ever had the trademark or not.
I hope if Wal-mart wins, they'll be nice enough to let everybody use it. But it's a US corporation, so they'll probably sue anybody who's ever touched it.
Watchmen.... (Score:2)
blame USPTO and courts (Score:3, Informative)
It seems this should be a glaringly obvious issue as far as U.S. trademark law is concerned. If it was ever possible to trademark, that time has long passed. The image has appeared on everything imaginable from pillows to bandages, probably millions of successful elementary school test papers, shoes, bowling balls, pins, etc, etc. I can hardly imagine a MORE dilute image. It's a testiment to the diluted nature that the overwealming majority of people don't even have a theory as to who created the smiley face image.
It appears that WalMart is well aware of this and that their action is purely a defensive move to avoid the expense of a court battle. The fact that the best defense against an outrageous legal claim is an equal but opposite outrageous claim is an indictment of the U.S. court system, not WalMart. There are plenty of reasons to question WalMart, but this isn't one of them.
Re:Two issues here (Score:2)
Re:Two issues here (Score:5, Informative)
You can copyright a logo.
Re:IANAL, but you're still wrong (Score:3, Informative)
Re:IANAL, but you're still wrong (Score:3, Interesting)
I don't think a yellow-and-black smilie face counts.
Re:IANAL, but you're still wrong (Score:4, Insightful)
IAAL and it is you who is wrong (Score:4, Interesting)
Re:Two issues here (Score:4, Insightful)
"Patent and Trademark EVERYTHING, Including the wheel. It will get accepted, and unless you fight it out in court, and LOSE, people should pay you money for using it."
Frivility is a non-issue at this point.
I think walmart and the other guy need a good solid kick in the pants.
Re:Two issues here (Score:5, Informative)
SCM
Re:Yet another reason to shop elsewhere (Score:2)
Re:Yet another reason to shop elsewhere (Score:2)
Hello. Welcome to Slashdot. How are you today?
Re:Yet another reason to shop elsewhere (Score:2)
I'm not entirely sure fsck would even work for the organization. We'd have more luck nuking them from high orbit.
Re:Yet another reason to shop elsewhere (Score:3, Funny)
Re:Oops.. (Score:5, Informative)
From the article "Wal-Mart spokesman John Simley told the Los Angeles Times"
Smiley and Simley are not the same.
Re:Oops.. (Score:3)
Re:Heh (Score:2)
Re:Heh (Score:4, Funny)
"Wal-Mart spokesman John Simley"
Cost of a spokesperson : $40K a year
Cost of a spokesperson with a name that sounds like an advertising gimick of the company: Priceless.
For everything else there's Walmart Visa cards.
Re:Don't be silly (Score:2)
That one is not the yellow one in dispute.
Re:The Patent System Needs an Overhaul (Score:5, Insightful)
Wait{er|resse}s sing something else (Score:3, Funny)
Re:The Patent System Needs an Overhaul (Score:2)
Re: (Score:2)
Re:This reminds me of.... (Score:3, Funny)
Guess who wins in the argument about who can or cannot legally trademark something between the USPTO and some guy on Slashdot who hear from a friend who knows a guy who said that Microsoft couldn't trademark something?